Law and Literature Part 15

38. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 226 n. 59 (1940).

See Michael Boudin, "Ant.i.trust Doctrine and the Sway of Metaphor," 75 Georgetown Law Journal 395 (1986); Chad M. Oldfather, "The Hidden Ball: A Substantive Critique of Baseball Metaphors in Judicial Opinions," 27 Connecticut Law Review 17 (1994). See generally Bernard J. Hibbitts, "Making Sense of Metaphors: Visuality, Aurality, and the Reconfiguration of American Legal Discourse," 16 Cardozo Law Review 229 (1994).

*New York law evidence illegally seized by the police is nevertheless admissible in a criminal trial.40 Cardozo packed into eleven words the case against the exclusionary rule (a rule that the Supreme Court later, however, imposed on the states in the name of the Fourth Amendment): "The criminal is to go free because the constable has blundered." Compression is not the only virtue of this sentence. The subst.i.tution of the slightly archaic (even in 1926) word "constable" for "policeman" is inspired. It not only improves the rhythm of the sentence and by its faintly exotic air makes the sentence more memorable; it also makes the abuse of power by the police seem trivial, almost comical. The "constable" puts the reader in mind of the unarmed British policeman, so different (in legend anyway) from his rough American counterpart. And Cardozo's constable is not a uniformed thug but a blunderer-a Gilbert and Sullivan constable whose pratfalls are unlikely to strike anyone as a menace to personal liberty.

Inverting subject and predicate is a signature of Cardozo's style: "Negligent the act is, and wrongful in the sense that it is unsocial, but wrongful and unsocial in relation to other travelers, only because the eye of vigilance perceives the risk of damage."41 The inversion puts the reader off at first but turns out to be an effective method of emphasizing key words ("negligent" and "wrongful" in the pa.s.sage just quoted). Such departures from standard word order, and the frequent use of metaphor and aphorism, are what detractors have in mind when they call Cardozo's style "ornate." It is not ornate, at least in his judicial opinions. An ornate style is one rich in subordinate clauses, parentheses, digressions, redundancies, and other curlicues. Cardozo's inversions of standard word order and his use of metaphor and aphorism make for concision and vivacity.

The style of Cardozo's nonjudicial writings is more florid than that of his judicial opinions, and this has colored impressions of his opinion writing. Here is an example: "Judges march at times to pitiless conclusions under the prod of a remorseless logic which is supposed to leave them no alternative. They deplore the sacrificial rite. They perform it, none the less, with averted gaze, convinced as they plunge the knife that 150 N.E. 585, 587 (N.Y. 1926).

Palsgraf v. Long Island R.R., 162 N.E. 99, 100 (N.Y. 1928).

they obey the bidding of their office. The victim is offered up to the G.o.ds of jurisprudence on the altar of regularity."42 Extended-indeed extravagant-metaphor, a tone arch and coy, an incongruous allusion to the Aztecs' practice of human sacrifice, and staccato sentences lending a dramatic air to the proceedings-these are hallmarks of the overripe style found in many of Cardozo's nonjudicial writings. But there is good stuff in them as well, such as this graceful tribute to John Marshall: "He gave to the const.i.tution of the United States the impress of his own mind; and the form of our const.i.tutional law is what it is, because he moulded it while it was still plastic and malleable in the fire of his own intense convictions."43 Cardozo's style has a high sheen, an artifactual quality that makes the reader conscious of his opinions as works of judicial art. The opinions of his approximate contemporary Learned Hand are successful imitations of the judge's thinking process as he wrestles with a case. It twists and turns as the judge is pulled hither and yon by the weight of opposing considerations as they present themselves to his mind. Hand is the Henry James of judicial stylists. Cardozo's style suggests a smoother surface, Hand's (of which I'll give an example later) a greater depth.

Unlike Cardozo, Holmes wrote as well off the bench as on. Here is a short pa.s.sage from a speech he gave in 1886 to students at the Harvard Law School: "The Professors of this School have said to themselves more definitely than ever before, We will not be contented to send forth students with nothing but a rag-bag full of general principles-a throng of glittering generalities, like a swarm of little bodiless cherubs fluttering at the top of one of Correggio's pictures."44 Holmes makes his point memorable first by adopting a dramatic mode ("the Professors of this School have said to themselves . . . We will" rather than "the Professors of this School are not content to . . .") and then by heaping up images. Two metaphors ("a rag-bag full of general principles" and "a throng of glittering Cardozo, "The Growth of the Law" (1924), in Selected Writings of Benjamin Nathan Cardozo: The Choice of Tycho Brahe 219 (Margaret M. Hall ed. 1947).

43. Cardozo, The Nature of the Judicial Process 169170 (1921).

Oliver Wendell Holmes, "The Use of Law Schools," in The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr. 224, 227 (Richard A. Posner ed. 1992).

*generalities"), the second employing consonance, precede the climactic simile ("like a swarm of little bodiless cherubs fluttering"). The "swarm of little bodiless cherubs" is a master stroke. Cherubs are indeed little and bodiless; but describing them so makes them the very quintessence of ineffectuality. That they are in a picture, and, even more, that they are fluttering at the top of the picture and thus at the edge of the viewer's focus, make the image in the reader's mind (the reader is not the viewer) even sharper. Notice also how the progression-general principles, glittering generalities, bodiless cherubs-enables the reader to accept a simile that, without any preparation, might have seemed grotesque. An abstraction ("general principles") is made visualizable.

Holmes's beat was not limited to law. Here is the peroration of one of his after-dinner speeches: . . . I think it not improbable that man, like the grub that prepares a chamber for the winged thing it never has seen but is to be-that man may have cosmic destinies that he does not understand. And so beyond the vision of battling races and an impoverished earth I catch a dreaming glimpse of peace.

The other day my dream was pictured to my mind. It was evening. I was walking homeward on Pennsylvania Avenue near the Treasury, and as I looked beyond Sherman's Statue to the west the sky was aflame with scarlet and crimson from the setting sun. But, like the note of downfall in Wagner's opera, below the sky line there came from little globes the pallid discord of the electric lights. And I thought to myself the Gotterdammerung will end, and from those globes cl.u.s.tered like evil eggs will come the new masters of the sky. It is like the time in which we live. But then I remembered the faith that I partly have expressed, faith in a universe not measured by our fears, a universe that has thought and more than thought inside of it, and as I gazed, after the sunset and above the electric lights there shone the stars.45 This is prophecy in prose poetry. (Notice the rhetorical effectiveness of Holmes's economical use of commas, and the short plain sentence-"It is 45. Holmes, "Law and the Court," in id. at 145, 148.

like the time in which we live"-placed between two lovely sinuous long sentences.) It is, indeed, a distant cousin of "The Second Coming." Maybe not so distant. Like Yeats's poem, Holmes's peroration is about a rebirth at once sinister and thrilling. The house of the old G.o.ds is going up in flames, as in Wagner's opera. The new G.o.ds, the G.o.ds of technology, symbolized by the street lamps pregnant with fearful possibilities, appear just as the old G.o.ds are flaming out. But their reign is short. Immediately the stars-the symbols of the universe that contains man and his projects along with everything else ("a universe not measured by our fears" is a beautiful touch)-appear, the real rulers, dispelling the fear engendered by man's "evil eggs." Not for nothing was Holmes the cla.s.s poet of his graduating cla.s.s at Harvard College.46

Aesthetic Integrity and the "Pure" versus the "Impure" Style Judges may be able to obtain insights from literature that have nothing to do with effective presentation, that have rather to do with the spirit, meaning, values, even information (the novel as news) found in literature; I consider those possibilities in Part III of this book. Here I want to abstract from the ethical and informational content of literature and direct attention to the craft values displayed in it, notably impartiality (detachment, balance, an awareness of the possibility of other perspectives than the writer's own), scrupulousness, and concreteness. These values, formalistic in character because independent of the content of the work, add up to aesthetic integrity and should be demanded of judicial opinion writers.

To read The Merchant of Venice without preconceptions (as if that were possible!) is to have no doubt that Shylock is a villain; likewise Satan in Paradise Lost, though the contrary has long been argued.47 If you read the Of course, judges are not the only authors of distinguished legal prose. Besides countless briefs of high quality, including some by Abraham Lincoln, but generally of ephemeral interest, and some notable oral arguments such as Robert Jackson's closing argument to the Nuremberg Tribunal, works of scholars.h.i.+p and polemic by law professors have occasionally touched the rhetorical heights.

See, for example, William Empson, Milton's G.o.d (2d ed. 1981). The orthodox view is forcefully restated in Jeffrey Burton Russell, Mephistopheles: The Devil in the Modern World 95127 (1986).

*Iliad carefully you can have no doubt that you are meant to think it a fine thing that the Trojans are going to be slaughtered. And no reader of For Whom the Bell Tolls doubts that Hemingway sides with the Spanish Loyalists. But in none of these cases has the author loaded the dice by depriving the villains of their essential humanity (in the case of Satan, his "angelicity"). Forgoing the facile triumph, the author makes the reader see the situation from the villain's point of view too. To visualize a Jew as fully if wickedly human was something few Elizabethans could have done; Shakespeare's great contemporary Christopher Marlowe did not try to do it in The Jew of Malta. To portray Satan as a heroic figure, Milton was bordering on blasphemy. Dante puts Paolo and Francesca in h.e.l.l but treats them sympathetically-the pilgrim Dante (Dante the character in the Divine Comedy, as distinct from Dante the author of it) faints at Francesca's telling of her story. The Iliad is the oldest surviving expression of awareness that foreigners who are your mortal enemies might nevertheless have the same feelings as you. Hemingway "refuses to make villains of all the Fascists in For Whom the Bell Tolls or to make all the Loyalists good and decent people."48 Stendhal, as hostile as he was to the Church and the n.o.bility, nevertheless refuses in The Red and the Black to romanticize liberals, peasants, republicans, the bourgeoisie, or Bonapartists (he had worked for Napoleon).

One-sidedness troubled the New Critics about Romantic poetry. (Recall from chapter 8 Cleanth Brooks's suggestion that tragedy needs an element of the comic in order to provide a balanced picture of the human situation.) Keats's "Ode to the Nightingale" contrasts the world of the nightingale (singing of summer in full-throated ease, pouring forth its 48. An observation by Cleanth Brooks quoted in Robert Penn Warren, "A Conversation with Cleanth Brooks," in The Possibilities of Order: Cleanth Brooks and His Work 1, 16 (Lewis P. Simpson ed. 1976). With the second half of Brooks's remark ("or to make all the Loyalists good and decent people") compare Shakespeare's refusal to make all the Christians in The Merchant of Venice good and decent people. Indeed, it has been argued (though with exaggeration) that "what Shakespeare is saying in The Merchant of Venice is that Jews are bad, but Christians are just as bad . . . The only practising Christian in the play is Portia, who, as a female barrister, cannot possibly exist." W. D. Rubinstein, A History of the Jews in the English-Speaking World: Great Britain 41 (1996).

soul abroad in such an ecstasy, etc.) with the human world, described as follows: The weariness, the fever, and the fret Here, where men sit and hear each other groan; Where palsy shakes a few, sad, last gray hairs, Where youth grows pale, and spectre-thin, and dies, Where but to think is to be full of sorrow And leaden-eyed despairs, Where Beauty cannot keep her l.u.s.trous eyes, Or new Love pine at them beyond to-morrow.

This is wonderful poetry, but the human world is not so bleak as Keats pretends. The extremes of bliss and misery that the poem depicts make it a fairy tale in verse. And when Sh.e.l.ley in "The Mask of Anarchy" urges the common people of England to "shake your chains to earth like dew" and promises that "tyrants would flee / Like a dream's dim imagery," he is belittling the struggle for liberty by making its enemies appear insubstantial.49 And remember Wordsworth's six-year-old philosopher? Absence of a mature awareness of the finitude of human capability was one of the things that turned the New Critics (along with their religiosity and conservative politics) against much Romantic poetry.

Judges, too, though at a vastly lower level of eloquence, seek rhetorical triumphs by one-sided presentations. Consider the Supreme Court's opinion in Eisenstadt v. Baird. The issue was whether a state could forbid the sale of contraceptives to unmarried persons. The Supreme Court had held in an earlier case that the state could not forbid such a sale to married persons, but now it denied that marriage made any difference: "The marital couple is not an independent ent.i.ty with a mind and heart of its own, but an a.s.sociation of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person 49. Thomas R. Edwards, Imagination and Power: A Study of Poetry on Public Themes 167 (1971).

*as the decision whether to bear or beget a child."50 The dice are loaded. No one is likely to describe a married couple as "an independent ent.i.ty with a mind and heart of its own" or to defend "unwarranted" government intrusion. The Court is lazily knocking down straw men with italics. Had it said the issue was whether a state is const.i.tutionally obligated to allow the sale of goods that facilitate fornication and adultery by making these practices less risky, its refutations would not have sounded so convincing.

The most remarkable a.s.sertion in the pa.s.sage is that if the right of privacy means "anything," it means that unmarried people are ent.i.tled to buy contraceptives. This is to say, preposterously, that until 1972, when the Supreme Court decided the case (or maybe 1970, when the court of appeals rendered its decision, which the Supreme Court affirmed), there had been no right of privacy in American law.

The second component of aesthetic integrity, "scrupulousness"-the search for the exact word and phrase-is found in those sentences in which, as T. S. Eliot explained in "Little Gidding,"

. . . every word is at home, Taking its place to support the others, The word neither diffident nor ostentatious, An easy commerce of the old and the new, The common word exact without vulgarity, The formal word precise but not pedantic, The complete consort dancing together.

The metaphysical poets and their modern avatars, such as Eliot himself, ill.u.s.trate this ideal in poetry. Examples from prose writers include Flaubert, James, Joyce, Woolf, Kafka, and Philip Roth (recall my quotations from Operation Shylock). Contrasting Kafka with one of his imitators, Ronald Gray shows how Kafka's superiority derives in part from the sobriety and restraint of his style-his refusal to strive for the sensational effects that his frequently fantastic subject matter might seem to invite.51 405 U.S. 438, 453 (1972).

Gray, Franz Kafka 1028 (1973). See also Joseph Strelka, "Kafkaesque Elements in Upon returning to Denmark following his aborted voyage to England, Hamlet writes the following letter to Horatio (IV.4.1228): Horatio, when thou shalt have overlooked this, give these fellows some means to the king: they have letters for him. Ere we were two days old at sea, a pirate of very warlike appointment gave us chase. Finding ourselves too slow of sail, we put on a compelled valour; in the grapple I boarded them: on the instant they got clear of our s.h.i.+p, so I alone became their prisoner. They have dealt with me like thieves of mercy, but they knew what they did; I am to do a good turn for them. Let the king have the letters I have sent; and repair thou to me with as much haste as thou wouldst fly death. I have words to speak in thine ear will make thee dumb; yet are they much too light for the bore of the matter. These good fellows will bring thee where I am. Rosencrantz and Guildenstern hold their course for England: of them I have much to tell thee. Farewell.

An adventure is narrated with high drama, extreme economy, and effortless grace, yet without any sacrifice of clarity or straining for effect. This is prose at its most exact yet elegant. It was written by a genius, but it is just a letter and it is not obvious that a modern judge could not write a judicial opinion as well as that letter is written. But it was written more than 400 years ago and in the interim the literary culture of the English-speaking world has deteriorated.

As an example of the third element of what I am calling aesthetic integrity, "concreteness," consider once again "The Second Coming," this time the beginning of the second stanza: Surely some revelation is at hand; Surely the Second Coming is at hand. The Second Coming! Hardly are those words out When a vast image out of Spiritus Mundi Troubles my sight . . .

Kafka's Novels and in Contemporary Narrative Prose," 21 Comparative Literature Studies 434435 (1984).

*I invite the reader's attention to the word "sight" in the fifth line. One is likely to remember it as "mind"; a vision is something in the mind. But to a poet it is something one sees, because what one sees is real but what one imagines is often imaginary, and the poet wants to make the reader believe in the reality of the vision. The use of visual or tactile imagery to drive home a point imparts concreteness to a writing-a quality that Holmes's writing had (remember the fluttering cherubs, the Fallopian tubes, the grub, the street lamps, and the evil eggs) but modern judicial opinions only rarely. Justice Potter Stewart said that he could not define p.o.r.nography but "I know it when I see it, and the motion picture involved in this case is not that."52 The candor (in acknowledging the limits of legal reasoning) and bluntness of this statement made a refres.h.i.+ng contrast to the characteristic evasions found in judicial opinions.

An example of such evasion is found in c.o.x Broadcasting Corp. v. Cohn. The case holds that the First Amendment forbids a state to award damages to the family of a rape victim killed by the rapist; the damages were sought to compensate the family for the invasion of privacy caused by broadcasting the victim's name. The first sentence in the opinion after the statement of the issue to be decided reads, "In August 1971, appellee's 17-year-old daughter was the victim of a rape and did not survive the incident."53 The words "did not survive the incident" are unconsciously borrowed from the standard phraseology for describing a medical procedure in the course of which the patient dies: "X was operated on for a tumor but did not survive the operation." No normal person says, "X was shot, and did not survive the incident"; he says, "X was killed." The Court s.h.i.+ed away from stating the blunt truth. It euphemized, smoothing the way for the opinion's startling conclusion that the First Amendment immunizes from legal liability the public dissemination of the macabre and irrelevant detail of a murder victim's name. Notice also the vagueness of "did not survive the incident"; it makes it sound as if she died of embarra.s.sment.

The avoidance of the concrete is ubiquitous in legal prose. To a judge Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).

420 U.S. 469, 471 (1975).

or a legislator a 14-year-old pregnant girl is a "minor pregnant woman" and a 12-year-old murderer a "delinquent minor."54 More than euphemizing is involved; the legal mind is insensitive to the imagery of language. Consider the standard legal cliche for the abortion cases: "Roe and its progeny."55 A person who writes that is "not seeing a mental image of the objects he is naming."56 A judge who is comfortable using the word "progeny" to describe the "descendants" of the case that legalized abortion is thinking of abortion abstractly. Judges who write in abstractions are in danger of losing sight of the consequences of their decisions by fooling themselves that they inhabit a purely conceptual realm.

The New Critics criticized Sh.e.l.ley for images that could not be visualized, as in this pa.s.sage from the "Ode to the West Wind": "Thou on whose stream,'mid the steep sky's commotion,/Loose clouds like Earth's decaying leaves are shed,/Shook from the tangled boughs of Heaven and Ocean,/Angels of rain and lightning." The New Critics contrasted such imagery with that of the metaphysical poets, whose imagery, however fantastic, could be readily visualized, as in (once again) "A Valediction: Forbidding Mourning": If they [our two souls] be two, they are two so As stiff twin compa.s.ses are two, Thy soul the fixed foot, makes no show To move, but doth, if th'other do.

And though it in the center sit, Yet when the other far doth roam, Akron Center for Reproductive Health, Inc. v. City of Akron, 651 F.2d 1198, 1205 n. 4 (6th Cir. 1981), affirmed in part and reversed in part on other grounds, 462 U.S. 416 (1983); In re Hester, 446 N.E.2d 202, 204 (Ohio App. 1982). See also, for example, Scheinberg v. Smith, 659 F.2d 476, 479 (5th Cir. 1981); Virgin Islands v. D.W., 3 F.3d 697, 698 n. 1 (3d Cir. 1993).

See, for example, Rust v. Sullivan, 500 U.S. 173, 216 (1991) (dissenting opinion); City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 420 n. 1 (1983); Harris v. McRae, 448 U.S. 297, 312 (1980); Myers v. State, 94 P.3d 211 (Utah 2004); Coleman v. DeWitt, 282 F.3d 908, 913 (6th Cir. 2002). The reference of course is to Roe v. Wade, 410 U.S. 113 (1973).

George Orwell, "Politics and the English Language," in The Collected Essays, Journalism and Letters of George Orwell, vol. 4, pp. 127, 134 (Sonia Orwell and Ian Angus eds. 1968).

*It leans, and hearkens after it, And grows erect, as that comes home.

The criticism of Sh.e.l.ley for failing to conform to the style of the metaphysical poets is unjust. He was striving for different effects,57 and succeeding; the "Ode to the West Wind" is one of the greatest poems in the English language. But the metaphysicals are a better model for judges than Sh.e.l.ley is, because judicial opinions need to be clear and this requires a commitment to concreteness that eludes most judges. One of the fundamental concepts in law is causation, since behavior that has no adverse effect is, however disreputable, a poor candidate for civil (as distinct from criminal) liability, where the operative principle is no harm, no foul. Yet instead of speaking simply of "cause," judges prefer to speak of "proximate cause," and to define it as something "that produces an injury through a natural and continuous sequence of events unbroken by any effective intervening cause."58 What they mean is that a "cause" is an act that made it probable that some other act would occur (and the probability materialized), and that is what they should say, and would say if they did not have an aversion to plain speaking. That aversion wells up from a Huld-like concern with maintaining law's mystique by using language in a way that will intimidate the laity because of its incomprehensibility. Legal language serves the same function as the Latin ma.s.s.

I can systematize my remarks about aesthetic integrity by noting and naming a fundamental split among judicial opinions. On one side of the divide are opinions that have a lofty, formal, imperious, impersonal, "refined," ostentatiously "correct" (including "politically correct"), even hieratic tone; on the other side are forthright, conversational, intimate, even demotic opinions. Tone depends on many things, including choice 57. As acknowledged by one of the leading New Critics in his comparison of the two poems. William K. Wimsatt Jr., "Romantic Nature Poetry," in Wimsatt, The Verbal Icon: Studies in the Meaning of Poetry 103, 115116 (1954). But his preference for Donne's poem is apparent. On the precision of the compa.s.s imagery in the poem, see also Ramie Targoff, John Donne, Body and Soul 74 (2008).

58. Cleveland v. Rotman, 297 F.3d 569, 573 (7th Cir. 2002).

of words and phrases and the decision to embrace or avoid contractions, colloquialisms, humor, and jargon. By "jargon" I do not mean the names of legal doctrines, which judicial opinions could not dispense with. I mean turns of phrase, usually archaisms or shorthand, that judges and other lawyers use but other writers avoid.59 These usages are eminently avoidable by judges too, for if they were not, they would not mark a style; styles are optional. They stamp legal prose as legalese, imparting an in-group, "professional" tone to legal writing. The disappearance of an older legal jargon, with its "aforesaids" and its subst.i.tution of "one" for a first name ("a witness, one Jones, testified that . . ."), fools modern judges into thinking that their opinions are free from jargon.

Short sentences and sentence fragments, suppression of ornamentation and parentheticals, and simplicity and brevity all tend to lower the tone of a writing, to make it more like speech. But the qualification implicit in "tend" is important. The elimination of all ornamentation may impart an impersonal, bureaucratic, hence formal tone to a writing. Brevity may lend a dogmatic air, and a string of short sentences can create the impression of a harangue.

The avoidance of headings and subheadings, and of course of footnotes, has a lowering effect because they are scholarly appendages. Paratactic (coordinate) sentence structure, in which clauses are connected by "but" or "and," lowers tone, while arranging the clauses in a sentence hierarchically by use of subordinating or concessive conjunctions such as "although" (hypotactic sentence construction) raises tone because such sentences are more difficult to understand. A proclivity for acronyms raises tone by making a work seem technical; a fondness for everyday speech lowers it. Tone is raised by polish, lowered by candor and sponta 59. Such as "absent" when used as a preposition, "implicate" (to mean relate to or invoke, as in "the due process clause implicates privacy concerns"), "ambit," "chilling effect" (to describe the effect of the regulation of speech on the marketplace of ideas and opinions), "-based" (as in "autonomy-based justification"), "habeas" (for habeas corpus), "instant" case for "present" case, "construction" (to mean interpretation), "facially" (explicitly), "impeach" to mean "contradict," "gravamen" (ground, meaning), "simpliciter" (solely), "arguendo" (it could be argued), "even had we" (that is, "even if we had"), "mandate" (as a verb meaning to order or require), "nexus" (connection), "p.r.o.ng" (as meaning one element of a multifactor test or standard), and-of course-"progeny." For other examples and searing criticism, see Garner et al., note 6 above, 11.

*neity or the pretense of these things. Oddly, a predilection for rare words that are not terms of legal art can raise tone by making an opinion seem pompous and learned yet equally can lower it by making the opinion seem tongue-in-cheek. Personality lowers, impersonality raises (though with a qualification noted later). Cert.i.tude raises, dubiety and tentativeness lower, but excessive qualification raises. Configuring an opinion as a story, debate, or exploration lowers; configuring it as a dogmatic announcement, de haut en bas, or as a logical demonstration, raises.

The metaphor of height may be misleading. Judges who write in what I am calling the "low" style, such as Holmes, are by and large the judges who are intimate with high culture, fussy about their style, aristocrats of writing and thought, judicial Coriola.n.u.ses even. So let me switch metaphors and borrow Robert Penn Warren's distinction between "pure" and "impure" poetry.60 "The pure poem tries to be pure by excluding, more or less rigidly, certain elements which might qualify or contradict its original impulse. In other words, the pure poems want to be, and desperately, all of a piece" (p. 16). Warren wrote this at a time when the most celebrated modern poets, such as Yeats and Eliot, were in self-conscious revolt against the characteristic style of nineteenth-century Romantic and particularly Victorian poetry. Tennyson's poetry, for example, is very refined, "correct," polished, sonorous-he was, after all, the poet laureate of Queen Victoria's England. It avoids "low" subjects and diction, expresses conventional emotions conventionally, is self-consciously "poetic" and "elevated," and lacks the tension, wit, and ambiguity of metaphysical and modernist poetry. As a result of these attributes Tennyson's poetry lacks a certain tang and texture and fidelity to life. He was a great poet, but it is possible to prefer a poetic style that is more concrete, informal, intellectual; more like drama or conversation; with a wider emotional register and range of subject matter and a more varied diction; more, even, like prose.

This, the impure style, is the style of Shakespeare's plays;61 of Donne, 60. Warren, "Pure and Impure Poetry," in his Selected Essays 3 (1958).

61. Shakespeare's "dialogue is level with life." Samuel Johnson, "Preface to the Plays of William Shakespeare," in Samuel Johnson's Literary Criticism 139, 143 (R. D. Stock ed. 1974).

Marvell, and the other metaphysical poets; of Byron; and among modern poets of T. S. Eliot (despite Eliot's evident debt to Robert Browning, one of Tennyson's contemporaries), Wallace Stevens, Yeats from about 1910, Auden, and Philip Larkin. Warren speaks of "resistances," of "the tension between the rhythm of the poem and the rhythm of speech . . . ; between the formality of the rhythm and the informality of the language; between the particular and the general, the concrete and the abstract; . . . between the beautiful and the ugly; between ideas" (p. 27). Other New Critics spoke of irony, paradox, complexity, polysemy, ambiguity, the concrete universal.

The difference between the two poetic styles is echoed in judicial opinions. Most opinions are carefully drafted to emphasize the difference between their diction and that of ordinary speech, which is just the sort of difference that poets like Shakespeare, Byron, and Eliot liked to blur. I am struck by the almost complete disappearance of the personal, direct, and conversational notes sounded by judges such as Holmes and Learned Hand who were steeped in a literary culture. Ours is an age of informal speech and writing, but also of delegated writing and specialized vocabularies, creating a tension between the informal and the formal that in law has been resolved in favor of the latter.

Judicial opinions in the pure style tend to be long for what they have to say, solemn, and predictable in the sense of conforming closely to professional expectations about the structure and style of a judicial opinion. If we had a judicial poet laureate, that is how he or she would write. The pure opinion uses technical legal terms without translation into everyday English, quotes heavily from previous judicial opinions, includes much unnecessary detail concerning names, dates, and places, complies scrupulously with whatever are the current conventions of citation form, avoids any note of levity (which we recall Cleanth Brooks thought essential in tragedy to create a complete picture of the human situation), conceals the author's personality, prefers ready-made formulations to novelties,and bows to the current norms of political correctness (corresponding to the euphemisms for which the Victorians became notorious) at whatever cost in stilted diction. The familiarity of the pure style makes it invisible to its pract.i.tioners and the intended audience of lawyers. But it is not a plain or transparent style. Its artificiality is revealed by a comparison *with the prose of a nonlawyer dealing with a similar issue-for example, a philosopher writing about intention compared to a judge in a criminal case writing about intention, or Philip Roth describing the common law of privacy compared to a judicial opinion in a privacy case.

Impure stylists like to pretend that what they are doing when they write a judicial opinion is explaining to a hypothetical audience of laypersons why the case is being decided in the way that it is. These judges eschew what has been aptly termed the "rhetoric of inevitability."62 They prefer the bolder approach (to critics, brazen) of trying to persuade without using stylistic devices intended to overawe. They write as it were for the ear rather than for the eye, and avoid long quotations from previous decisions so that they can speak with their own tongue-make it new, make it fresh. (Avoidance of the ready-made was an important element of the "wit" that Eliot admired in the metaphysical poets.) They like to be candid and not pretend to know more than they do or to speak with greater confidence than they feel. They eschew unnecessary details, however impressive the piling on of them might be, and shun cliches. They imitate the movement of thought-unfriendly critics call their style "stream of consciousness." The judicial impurists, as Robert Penn Warren said of the modernist poets, "have tried, within the limits of their gifts, to remain faithful to the complexities of the problems with which they are dealing . . . They have refused to take the easy statement as solution" (pp. 3031).

Paradoxically, the impurists generally take more pains over style than the purists do; for unless one is an enormously gifted writer it takes a great deal of effort to make an opinion seem effortless!63 The pure style, despite its artificiality, comes more easily to a legally trained person than the impure style. For one of the things that law school and legal practice teach all unconsciously-and all the more effectively for that-is to forget how one wrote before one became a lawyer.

"Voice" goes with "ear." The choice of styles is influenced by the na Ferguson, note 1 above, at 213216. See also Pierre Bourdieu, "The Force of Law: Toward a Sociology of the Juridical Field," 38 Hastings Law Journal 805, 820 (1987).

An English observer, noting that Holmes's style "tends to be undemonstrative, unemphatic, casual, insouciant even," argues that it exemplifies "Ovid's maxim, ars est celare artum-the art is to conceal the art." Neil Duxbury, "When Trying Is Failing: Holmes's 'Englishness,'" 63 Brooklyn Law Review 145, 152 (1997).

ture of the audience at which the judge is aiming. For many judges it consists of the lower-court judge whose decision is being reviewed and the parties' lawyers; anyone else is just an authorized eavesdropper. These are indeed the most knowledgeable and interested professional consumers of the appellate court's opinion. Consummate insiders, they are adept at reading (including reading between the lines of) a pure judicial opinion. The author wants to persuade them that in reaching its result the court has carefully considered all the points in the case and has not deviated from "the law" in the typical sense in which the lawyers and the lower-court judge will have conceived of it-has not pulled any rabbits out of a hat. For this rhetorical purpose the pure style is the better one because this tiny, focused, h.o.m.ogeneous professional audience has settled expectations concerning the appropriate diction and decorum of a judicial opinion. At the other end of the stylistic spectrum, the primary audience at which the most boldly impure judicial stylists aim consists not of the legal insiders but of those individuals, both laypersons and lawyers, who can "see through" the artifice of judicial pretension.64 Here is to be found the "one in a thousand" for whom Holmes said that he wrote. Since one in a thousand aggregates to a larger number than the lawyers and lower-court judge in a single case, the impure judicial stylist may have a larger audience than the pure, just as Shakespeare has a larger audience than Tennyson.

The pure tendency is ill.u.s.trated by the opinions of Brandeis, Frankfurter, Brennan, the second Harlan, and the vast majority of opinions written by law clerks-which means most opinions in all American courts today. On the impure side can be found most opinions of Holmes, Douglas, Black, Jackson, and Hand.65 My inclusion of Douglas should make clear that impure judicial opinion writing is not always superior to pure, Willard Hurst, "Who Is the 'Great' Appellate Judge?" in The Writing of Judicial Biography-A Symposium, 24 Indiana Law Journal 363, 394, 398 (1949), remarks Holmes's "irreverence toward judicial pretense"-a salient characteristic of Holmes's opinions.

Don't be fooled by the florid character of some (not all, or even most) of Hand's prose. It reflects the culture in which he grew up. He was born in 1872. (With the same allowance, John Marshall's opinions can be seen as notable examples of the impure style.) Holmes, oddly, though born a generation before Hand, sounds more modern, in much the same way that Shakespeare and Donne sound more modern than many much later poets, such as Longfellow and Tennyson.

*any more than all impure poetry is superior to all pure poetry. Cardozo straddles the divide.

The two styles are correlated, though not perfectly, with two jurisprudential stances, the formalist and the pragmatic. The former emphasizes the logical, objective, and constrained character of legal reasoning. The formalist holds that the function of a judicial opinion is to demonstrate that the decision is right and true. The pure style is the natural vehicle for such a demonstration. The pragmatist, while not doubting that right and wrong and true and false have useful roles to play in a variety of language games, doubts that justifying the decision in a close case is one of them. The pragmatist thinks that in deciding such a case the judge is trying to come up with the most reasonable result in a practical sense, though with due regard for systemic constraints on the exercise of judicial discretion, such as the need to maintain continuity with previous decisions and respect the limitations that the language and the discernible purposes of const.i.tutional and statutory texts impose on interpretation. He is apt to find the impure style more congenial.

In complaining about the "impersonality" of the pure style I risk seeming to endorse the very emotionality, sentimentality, and egoism characteristic of the Romantic and Victorian poetry that the modernist poets and critics decried. The arch sentimentalist-possibly the arch egoist-of the modern judiciary was Justice Harry Blackmun, a man of marked eccentricity, who did not try to disguise or, more important, to discipline the strong feelings that many of the cases that came before the Supreme Court aroused in him. He insisted, not only in his opinions but also in his public comments about the Court, on "letting it all hang out." Although his opinions frequently depart from the professional norms that I am a.s.sociating with the pure style and are certainly not lacking in "voice," the departure is not in the direction of Donne or Eliot. The voice is rather that of Joyce Kilmer or Norman Rockwell. The opinions often seem the unmediated expression of self, a self we might not like to know. Many of them are maudlin (DeShaney),66 melodramatic (Web 66. "Poor Joshua!" DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 213 (1989) (dissenting opinion). "Poor Joshua!" is at the other end of the personal-impersonal spectrum from the "did not survive the incident" of c.o.x Broadcasting. One might hope that judges could avoid bureaucratic euphemizing without succ.u.mbing to the opposite vice of labile sentimentalizing.

ster),67 unreasoned (Roe v. Wade, Callins),68,69 narcissistic (Casey),70 soph.o.m.oric (Roe's history of abortion policy from ancient Persia on and the ode to baseball in Flood v. Kuhn),71 or gratuitously indecorous (Michael M.).72 Although otherwise unlike the pure style, the narcissistic style is similar in having an inward orientation-albeit inward toward the judge rather than toward the professional culture. The impure style points outward, toward the world outside the culture. Samuel Johnson contrasted poets such as Shakespeare, who write from life, with lesser poets, who write from the picture of life painted by their predecessors. The former take their sentiments and descriptions immediately from knowledge. The resemblance is therefore just; their descriptions are verified by every eye and their sentiments acknowledged by every breast. Those whom their fame invites to the same studies copy partly them, and partly nature, till the books of one age gain such authority as to stand in the place of nature to another; and imitation, always deviating a little, becomes at last capricious and casual. Shakespeare, whether life or nature be his subject, shows plainly that he has seen with his own Webster v. Reproductive Health Services, 492 U.S. 490, 538, 560 (1989) (concurring and dissenting opinion): "I fear for the future. I fear for the liberty and equality of the millions of women who have lived and come of age in the 16 years since Roe was decided . . . For today, at least, the law of abortion stands undisturbed. For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows." His fear proved unwarranted.

68. On the rhetorical inept.i.tude of the opinion, see my book s.e.x and Reason 337 (1992).

Callins v. Collins, 510 U.S. 1141, 1143 (1994) (dissenting opinion). As Justice Scalia pointed out, Blackmun's belief that the death penalty cannot be administered const.i.tutionally is based on the existence of inconsistent lines of Supreme Court decisions-and the Court could eliminate the inconsistency by choosing between the lines. Id. at 11411143 (concurring opinion).

"I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 923 (1992). "I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today." Id. at 943.

407 U.S. 258, 260264 (1972).

Blackmun's concurring opinion in Michael M. v. Superior Court, 450 U.S. 464, 483 n.

* (1981), contains an extended quotation, irrelevant and in places obscene, from the transcript of a statutory rape case.

*eyes; he gives the image which he receives, not weakened or distorted by the intervention of any other mind; the ignorant feel his represen tations to be just and the learned see that they are complete.73 Most judges, like most poets, "copy" the work of their predecessors. They make small additions to the swelling corpus of judicial opinions, which now number in the millions. A few judges, while not unmindful of the constraints imposed and the resources supplied by this corpus, look outward to the world of action that law regulates and the world of thought from which the ideas and values of the law ultimately derive. They try to conform their opinions to this outer world, and they need a style suitable to it and not merely to a hermetic professional discourse.

Stance cannot automatically be inferred from style. Every writing has an implied as well as an actual author, and the two are often divergent, sometimes shockingly so. (They seem shockingly convergent in the case of Blackmun.)74 A comparison of Holmes's correspondence with his opinions, or of Learned Hand's preconference memoranda with his opinions, shows these judges a.s.suming a loftier, more formal, more "grownup" tone in their opinions, impure as those opinions are. And nothing is more common than to wrap a pragmatic decision in a formalist mantel, as Cardozo did in MacPherson v. Buick Motor Co.,75 his famous decision expanding products liability. But there is a danger that the dress will impede engagement with the substantive questions. We tend to believe that words enable thought. But words can also take the place of thought. The pure style is an anodyne for thought. The impure style forces-well, invites- the writer to dig below the verbal surface of the doctrines that he is interpreting and applying. There he may find just his own emotions, but if he is lucky he may find the deep springs of the law.

We do not think entirely in words and certainly not entirely in sentences and paragraphs. Inarticulable or even unconscious feelings and Johnson, note 61 above, at 163. I have regularized the spelling and punctuation in this pa.s.sage.

The "Poor Joshua!" outburst in the DeShaney dissent was not a piece of calculated rhetoric; Blackmun blurted it out during the oral argument of the case.

111 N.E. 1050 (N.Y. 1916). See Edward H. Levi, An Introduction to Legal Reasoning 925 (1949); Richard A. Posner, Cardozo: A Study in Reputation 108 (1990).

impressions fill in around the sentence fragments that form in our minds as we think about a problem. This incompletely verbalized thinking can be insightful. But it can also be muddy. When we try to organize it into sentences and paragraphs, we may find that our confident conclusion is wrong. Obviously language is not just a medium of communication; it is the princ.i.p.al medium of human thought, and "thinking on paper" is often necessary to bring the resources of language fully to bear on a problem.76 Writing also encourages a degree of critical detachment: in reading over what he has written, the writer may wonder how an audience would react. Writing may even be necessary to bring deep intuitions to the surface. Many writers have had the experience of not knowing except in a general sense what they were going to write until they started writing. A link is somehow forged between the unconscious and the pen. It is not only poets who write better than they think.

A judge who realizes that the considerations that bear on judicial decision-making range beyond the canonical materials of formalist legal thought is apt to find the pure style confining because it is not designed for the articulation of those considerations. To the impure poet "nothing that is available in human experience is to be legislated out of poetry."77 Subst.i.tute "law" for "poetry" and we have the credo of the impure judicial stylist, as expressed in an opinion by Learned Hand concerning whether a veterans' reemployment statute gave the returning veteran more seniority than nonveterans in his job cla.s.sification. Among the considerations that persuaded Hand and his colleagues that the answer was "no" was that when we consider the situation at the time that the Act was pa.s.sed- September, 1940-it is extremely improbable that Congress should have meant any broader privilege than as we are measuring it. It is true that the nation had become deeply disturbed at its defenseless position, and had begun to make ready; but it was not at war, and the 76. Peter Carruthers, Language, Thought and Consciousness: An Essay in Philosophical Psychology 5152 (1998). See also Chad M. Oldfather, "Writing, Cognition, and the Nature of the Judicial Function," 96 Georgetown Law Journal 1283, 13031317 (2008).

77. Warren, note 60 above, at 26.

*issue still hung in the balance whether it ever would be at war. If we carry ourselves back to that summer and autumn, we shall recall that the presidential campaigns of both parties avoided commitment upon that question, and that each candidate particularly insisted that no troops should be sent overseas. The original act limited service to one year, and it was most improbable that within that time we should be called upon to fight upon our own soil; as indeed the event proved, for we were still at peace in September, 1941. Congress was calling young men to the colors to give them an adequate preparation for our defence, but with no forecast of the appalling experiences which they were later to undergo. Against that background it is not likely that a proposal would then have been accepted which gave industrial priority, regardless of their length of employment, to unmarried men.78 This effort "to reconstruct . . . the purpose of Congress when it used the words in which [the provisions in issue] were cast"79 owes nothing to distinctively "legal" methods of reasoning and could only with difficulty be expressed in a style designed for the articulation of those methods.

So there is the pure style and the impure style, but there is also good writing and bad writing; and much judicial writing today is bad even if we exclude outliers like Blackmun. One reason is the obdurately nonliterary culture of the law reviews. Most judicial writing nowadays is done by law clerks; most law clerks are alumni of their law school's law review; and it is in working on the law review that most future law clerks form their conception of good legal writing. Because of the decline of the literary culture in America, few law review editors know how to write well or to tell good writing from bad. But they know how to apply rules, and not realizing that good writers write by feel rather than by rule they proliferate rules of grammar, style, usage, and citation form to govern the articles and student notes that they publish. Law review editors enforce "schoolmarmish superst.i.tions about good prose style."80 With these rules layered over norms Fishgold v. Sullivan Drydock & Repair Corp., 154 F.2d 785, 788789 (2d Cir.), affirmed, 328 U.S. 275 (1946).

79. Id. at 789.

James Lindgren, "Reforming the American Law Review," 47 Stanford Law Review 1123, 1124 (1995)." See also Jonathan Mermin, "Remaking Law Reviews," 56 Rutgers Law

of political correctness that virtually preclude the use of singular p.r.o.nouns,81 and conjoined with the dreary legal jargon of which I gave a sample earlier, a formula for bad writing is ready at hand.

Two Cultures In emphasizing the importance of an approach to judicial composition that shows awareness of the complexity of the human condition and of perspectives other than the writer's own, I may seem to be arming critics of the application of economics to law, such as Peter Teachout. He argues that the language of economics, in its lack of affect and its striving for scientific precision, distorts human reality and obliterates alternative perspectives. The economic approach to law "takes an inherited cultural rhetoric that to a certain extent is already ethically integrated and subjects it to the disintegrative pressures of radical market theory."82 He ill.u.s.trates not with any judicial opinion, but with my article on Bird v.

Review 603 (2004), and note 7 above. Consider such pointless rules as do not use "since" as a synonym for "because," always insert a comma between two independent clauses (commas should be inserted only where necessary to clarify meaning or let the reader pause to draw a breath), use "while" only in reference to time and therefore never as a synonym for "although," do not use a temporal adverb to denote a previous or subsequent pa.s.sage (so don't say "as I noted earlier") and don't use "above" or "below" either (as in "In the pa.s.sage quoted above"), don't use contractions, don't put a hyphen after the prefix "pre" even if that is necessary to avoid confusion (as in "preindictment"), and don't use the pa.s.sive voice. There is a valid objection to the agentless pa.s.sive, as in "I was followed," when the consequence is to leave out something the reader would like to know. But "I was followed by him" is as informative as "He followed me," and indeed more so when the writer wants the emphasis to fall on the person followed rather than the person following ("I was followed by him," as opposed to "he followed me").

As in Rule 12(g) of the Federal Rules of Civil Procedure: "If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party . . . , the party shall not thereafter make a motion based on the defense or objection so omitted."

Peter Read Teachout, "Worlds beyond Theory: Toward the Expression of an Integrative Ethic for Self and Culture," 83 Michigan Law Review 849, 881 (1985). This is a standard complaint from within the law and literature movement. See, for example, James Boyd White, "Economics and Law: Two Cultures in Tension," 54 Tennessee Law Review 161 (1987); Margaret Jane Radin, Contested Commodities 8393 (1996). For reb.u.t.tal, also from within, see Pau*J. Heald, "Economics as One of the Humanities: An Ec.u.menical Response to Weisberg, West, and White," 4 Southern California Interdisciplinary Law Journal 293 (1995).

*Holbrook,83 a suit for damages brought by a young man who had been seriously wounded by a spring gun in a garden from which valuable tulips had been stolen. The garden's owner, expecting the thief to come back for more, set a spring gun and, hoping to wound the thief, posted no warning signs. The man who was wounded was not the thief, however; he had entered the garden to rescue a straying peahen. He sued the owner and won. Pouncing on my remark that "the case involved two legitimate activities, raising tulips and keeping peahens, that happened to conflict,"84 Teachout says that "in his utter preoccupation with the efficiency question-a preoccupation required by the deepest structures of the language he has chosen to employ-[Posner] virtually steps over the body of the seriously maimed young man."85 That is a strange criticism to make of an academic paper. A researcher should be allowed his choice of how to approach his subject. If, as applied to a particular problem in law, the economic approach falls short because it excludes important considerations, other scholars will bring them to the attention of the scholarly community. (And, by the way, raising tulips and keeping peahens are both legitimate activities and did conflict when the peahen strayed into the tulip garden.) A work of economic a.n.a.lysis will not have the rich texture of a poem by Donne or a play by Shakespeare, but one should not confuse dispa.s.sion with callousness. A medical paper is not insensitive or "disintegrative" merely because it does not express teary, or any, sympathy for sick people. Choice of words can, it is true, have political and social consequences. But as Margaret Radin acknowledges in what is otherwise a reprise of Teachout, to reconceive speech as a form of action on the ground that language affects thought and through thought action is to invite censors.h.i.+p.86 It is odd that liberals, such as Teachout and White, should echo the hostility to science of reactionary moderns, such as Eliot and Yeats and 83. 4 Bing. 628, 130 Eng. Rep. 911 (C.P. 1828).

Posner, "Killing or Wounding to Protect a Property Interest," 14 Journal of Law and Economics 201, 209 (1971).

85. Teachout, note 82 above, at 882.

Margaret Jane Radin, "Market-Inalienability," 100 Harvard Law Review 1849, 18821887 (1987).